Hamer v. City of Trinidad

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 15, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
STEPHEN HAMER,
Plaintiff - Appellant,
v. No. 17-1456
CITY OF TRINIDAD,
Defendant - Appellee.
------------------------------
COLORADO MUNICIPAL LEAGUE,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-02545-NYM-KMT)
_________________________________
Garrett S. DeReus (Andrew D. Bizer with him on the briefs), Bizer & DeReus, New
Orleans, Louisiana, for Plaintiff-Appellant.
Marni Nathan Kloster (Nicholas C. Poppe with her on the brief), Nathan Dumm & Mayer
P.C., Denver, Colorado, for Defendant-Appellee.
Wynetta P. Massey and Lindsay M. Rose, Special Counsel for Colorado Municipal
League, Office of the City Attorney, Colorado Springs, Colorado, and Dianne M.
Criswell, Attorney for Colorado Municipal League, Denver, Colorado, filed a brief for
Amicus Curiae in support of Defendant-Appellee.
_________________________________
Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
Title II of the Americans with Disabilities Act (“ADA”) mandates that “no
qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Similarly, section 504 of the Rehabilitation Act of 1973 (“RA”) mandates
in part that “[n]o otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Today we consider exactly when and how a public entity violates these two
statutes.1 The answer, in turn, affects how the applicable statutes of limitations
operate. Does a public entity violate Title II and section 504 only when it initially
constructs or creates a non-compliant service, program, or activity? If so, a single
statute of limitations accrues from the day a qualified individual with a disability first
discovers he or she has been injured by the service, program, or activity. The statute
of limitations, in this scenario, would bar any lawsuit brought after the limitations
period ends.
1
Unless we say otherwise, when we use the term “public entity,” we are
referring to both public entities under Title II and programs or activities that receive
federal financial assistance under section 504.
2
Or does a public entity violate Title II and section 504 repeatedly until it
affirmatively acts to remedy the non-compliant service, program, or activity? In that
situation, a qualified individual’s initial discovery that he or she has been injured
does not trigger just one statute of limitations that bars any lawsuit brought after the
limitations period ends. Rather, because the public entity commits a new violation
(and the qualified individual experiences a new injury) each day that it fails to act,
the statute of limitations effectively functions as a “look-back period,” Burlington N.
& Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1028–29 (10th Cir. 2007), restricting an
individual’s right to relief to those injuries suffered (1) during the limitations period
immediately prior to filing suit and (2) while the suit is pending.
We hold that a public entity violates Title II of the Americans with Disabilities
Act and section 504 of the Rehabilitation Act each day that it fails to remedy a non-
compliant service, program, or activity. As a result, the applicable statute of
limitations does not operate in its usual capacity as a firm bar to an untimely lawsuit.
Instead, it constrains a plaintiff’s right to relief to injuries sustained during the
limitations period counting backwards from the day he or she files the lawsuit and
injuries sustained while the lawsuit is pending. Because the district court applied a
different and incorrect standard, we reverse and remand for further proceedings.
I.
Plaintiff Stephen Hamer resides in Trinidad, Colorado; is confined to a
motorized wheelchair due to what he characterizes as “severe bilateral ankle
problems”; and, for purposes of this appeal, is a qualified individual with a disability
3
under Title II of the ADA and section 504 of the RA. He does not own a car or
otherwise use public transportation. Instead, he primarily utilizes the City of
Trinidad’s public sidewalks to move about in his wheelchair.
Plaintiff contends many of the City’s sidewalks and the curb cuts allowing
access onto those sidewalks do not comply with Title II of the ADA and section 504
of the RA. Indeed, at a City Council meeting he attended in April 2014, Plaintiff
informed City officials that he had personally counted seventy-nine non-compliant
sidewalks and curb cuts throughout the city. Further, at the end of that same month,
Plaintiff filed an ADA complaint with the United States Department of Justice
(“DOJ”) informing the government about the state of the City’s sidewalks and curb
cuts.
Plaintiff continued to lodge informal ADA and RA complaints at City Council
meetings over the next few months. And at some point after he lodged his ADA
complaint with the DOJ, the DOJ audited the City and discovered multiple non-
compliant sidewalks and curb ramps. Apparently in response to Plaintiff’s multiple
complaints and the results of the DOJ’s audit, City officials actively began repairing
and amassing funding to further repair non-compliant sidewalks and curb cuts.
Even so, Plaintiff nonetheless filed the present lawsuit against the City on
October 12, 2016, for violations of Title II of the ADA and section 504 of the RA.
Like the complaint he filed with the DOJ, Plaintiff complains of the City’s allegedly
deficient sidewalks and curb cuts. He thus seeks a declaratory judgment that the
City’s sidewalks and curb cuts violate the ADA and RA, injunctive relief requiring
4
City officials to remedy the City’s non-compliant sidewalks and curb cuts, monetary
damages, attorneys’ fees, and costs.
The district court granted summary judgment to the City on statute-of-
limitations grounds. The district court first observed that because neither Title II nor
section 504 explicitly provided for a statute of limitations, Colorado’s general two-
year statute of limitations governed Plaintiff’s claims. See E.E.O.C. v. W.H. Braum,
Inc., 347 F.3d 1192, 1197 (10th Cir. 2003) (“Where Congress creates a cause of
action without specifying the time period within which it may be brought, courts may
infer that Congress intended the most analogous state statute of limitations to
apply.”); see also Colo. Rev. Stat. § 13-80-102 (establishing Colorado’s general two-
year statute of limitations). The district court then noted the general rule in federal
court that “[t]he statute of limitations begins to run when the plaintiff knows or has
reason to know of the existence and cause of the injury which is the basis of his
action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (alteration in
original) (quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d
963, 969 (10th Cir. 1994)). With that rule in mind, the district court concluded that
Plaintiff must have “discovered” or “encountered” the City’s non-compliant
sidewalks and curb cuts no earlier than October 12, 2014—i.e., two years before the
day he filed his lawsuit—to survive summary judgment.
The district court determined, however, that Plaintiff’s claims most likely
accrued in April 2014 when Plaintiff first raised his concerns about the City’s
sidewalks and curb cuts at the City Council meeting and with the DOJ. In any event,
5
the district court also determined that Plaintiff’s claims must have begun to accrue
“at the very latest[] in August 2014” when he raised his concerns at a City Council
meeting for the final time. At one of these two points—either April or August
2014—Plaintiff was undoubtedly “aware of the nature and extent of the City’s
discrimination.” Thus, because both of these dates occurred before October 12,
2014, the district court held that the two-year statute of limitations barred Plaintiff’s
Title II and section 504 claims.
The district court explicitly rejected Plaintiff’s argument that the continuing
violation doctrine could salvage his claims from being untimely. This doctrine
applies “‘when the plaintiff’s claim seeks redress for injuries resulting from a series
of separate acts that collectively constitute one unlawful act,’ as opposed to ‘conduct
that is a discrete unlawful act.’” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666,
672 (10th Cir. 2016) (quoting Shomo v. City of New York, 579 F.3d 176, 181 (2d
Cir. 2009)). Stated differently, “one violation continues when ‘the conduct as a
whole can be considered as a single course of conduct.’” Id. (quoting Birkelbach v.
SEC, 751 F.3d 472, 479 n.7 (7th Cir. 2014)). The utility of the continuing violation
doctrine lies in the fact that as long as one of the separate wrongful acts contributing
to the collective conduct “occurs within the filing period,” a court may consider “the
entire time period”—including those separate acts falling outside the filing period—
“for the purposes of determining liability.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002) (emphasis added).
6
An important caveat to the continuing violation doctrine, however, is that it “is
triggered ‘by continual unlawful acts, not by continual ill effects from the original
violation.’” Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (quoting
Parkhurst v. Lampert, 264 F. App’x 748, 749 (10th Cir. 2008) (unpublished)). And
according to the district court, the allegedly unlawful acts at issue in Plaintiff’s
lawsuit—“the construction and alleged lack of maintenance of noncompliant
sidewalks and curb cuts”—were discrete, as opposed to continual, acts. As a result,
the district court concluded that “any subsequent injury caused by the City’s failure to
remediate these issues” after Plaintiff discovered or encountered them simply amounted
to “continual ill effects” of those original violations. Thus, the district court reasoned that
the continuing violation doctrine could not apply to Plaintiff’s claims.
The district court also denied Plaintiff’s additional argument that, regardless of
whether the continuing violation doctrine applied, his claims remained timely because the
City “violate[d] both statutes each day” that it failed to remedy its non-compliant
sidewalks and curb cuts. In Plaintiff’s opinion, such repeated violations meant that he
suffered injuries each day he was unable to access the sidewalks and curb cuts until the
day he filed suit. Under this theory, the two-year statute of limitations did not bar
Plaintiff’s suit completely. Instead, he could obtain relief for injuries he suffered after
October 12, 2014, but not for any injuries he suffered before that day.
The district court rejected Plaintiff’s argument, concluding that “it [was]
insufficient to rely solely on the continued inaccessibility of the City’s sidewalks and
curb cuts” for Plaintiff to show he suffered an injury or injuries after October 12, 2014.
7
Indeed, the district court again characterized the continued inaccessibility as “continued
ill effects” of Plaintiff’s original encounters or discoveries of the City’s alleged
discrimination. The district court therefore reaffirmed its belief that Plaintiff needed to
point to “discrete acts of discrimination he encountered since October 12, 2014,” to
survive summary judgment. And because Plaintiff had not directed the district court to
any evidence suggesting that he encountered or discovered any new, non-compliant
sidewalks and curb cuts after October 12, 2014, the district court stood firm in its
conclusion that Plaintiff’s Title II and section 504 claims were untimely.
Plaintiff now appeals the district court’s ruling that Colorado’s two-year
statute of limitations bars his Title II and section 504 claims.2 Our jurisdiction arises
under 28 U.S.C. § 1291, and our review is de novo. Sierra Club, 816 F.3d at 671.
Further, because Title II and section 504 essentially “involve the same substantive
standards, we analyze them together.” Miller ex rel. S.M. v. Bd. of Educ. of
Albuquerque Pub. Sch., 565 F.3d 1232, 1245 (10th Cir. 2009).
II.
Before launching into our analysis, we first take a moment to explain in more
detail the difference between the two arguments Plaintiff made in the district court
and how that difference affects our ultimate disposition of his appeal.
2
Neither party disputes that the applicable limitations period is two years in
length or that it derives from section 13-80-102 of the Colorado Revised Statutes.
We thus assume the same for purposes of this appeal.
8
As discussed above, the “continuing violation” doctrine—Plaintiff’s first
argument to the district court—tethers conduct from both inside and outside the
limitations period into one single violation that, taken as a whole, satisfies the
applicable statute of limitations.3 Sierra Club, 816 F.3d at 672. To help illustrate
this concept, we borrow a useful visual aid from attorney Kyle Graham’s law review
article “The Continuing Violations Doctrine”:
This figure “illustrates how [the continuing violation doctrine] combines otherwise
discrete occurrences A through E, of which only D and E occurred within the limitations
period, into a single, timely claim A.” Kyle Graham, The Continuing Violations
Doctrine, 43 Gonz. L. Rev. 271, 280 (2008).
3
Unlike the typical custom in our circuit, other courts and scholars have
sometimes added a word and referred to this doctrine as the “pure” continuing
violation doctrine. See, e.g., White v. Mercury Marine, Div. of Brunswick, Inc., 129
F.3d 1428, 1430 (11th Cir. 1997); Kyle Graham, The Continuing Violations
Doctrine, 43 Gonz. L. Rev. 271, 283 (2008).
9
By contrast, we have referred to the second argument Plaintiff made to the
district court as the “repeated violations” doctrine.4 Sierra Club, 816 F.3d at 671.
Unlike the continuing violation doctrine, the repeated violations doctrine “divides
what might otherwise represent a single, time-barred cause of action into several
separate claims, at least one of which accrues within the limitations period prior to
suit.” Graham, supra, at 275 (emphasis added). That division, in turn, “allows
recovery for only that part of the injury the plaintiff suffered during the limitations
period”; recovery for the part of the injury suffered outside of the limitations period,
however, remains unavailable. White v. Mercury Marine, Div. of Brunswick, Inc.,
129 F.3d 1428, 1430 (11th Cir. 1997); see also, e.g., Figueroa v. D.C. Metro. Police
Dep’t, 633 F.3d 1129, 1135 (D.C. Cir. 2011) (addressing how repeated violations
influence the statute of limitations); Provident Mut. Life Ins. Co. of Phila. v. City of
Atlanta, 864 F. Supp. 1274, 1284–85 (N.D. Ga. 1994) (describing an instance of the
repeated violations doctrine at work and observing that the plaintiff “may secure only
actual damages incurred within the [limitations period] preceding the date upon
which the action was filed”); Russo Farms, Inc. v. Vineland Bd. of Educ., 675 A.2d
1077, 1084 (N.J. 1996) (same). Mr. Graham again provides a useful visual aid that
illustrates just how this doctrine operates. As shown below, the repeated violations
doctrine “transforms what would otherwise represent a single, time-barred claim A
4
Other courts and scholars have sometimes referred to this doctrine as the
“modified” continuing violation doctrine. See, e.g., White, 129 F.3d at 1430;
Graham, supra, at 283.
10
into a series of fresh claims, identified as claims B, C, D, etc.” Graham, supra, at
281.
Notably, although Plaintiff argued in the district court that both the continuing
violation doctrine and the repeated violations doctrine could make timely his claims
under Title II of the ADA and section 504 of the RA, on appeal he argues only for
application of the repeated violations doctrine.5 Indeed, in his Opening Brief,
Plaintiff argues that
[e]ach time [he] was denied access to [the sidewalks and curb cuts], the
City of Trinidad committed discrimination within the meaning of the
ADA/§504 and a claim for damages arose under the statute. [Plaintiff]
experienced recurrent discrimination by the City of Trinidad both inside
and outside of the statute of limitations period. Accordingly, [Plaintiff]
had some claims that are timely and some that are time barred.
5
Plaintiff, in other words, abandoned his continuing violations argument on
appeal. We thus do not consider it. See United States v. Yelloweagle, 643 F.3d
1275, 1280 (10th Cir. 2011) (“[W]here [an appellant] raises an issue before the
district court but does not pursue it on appeal, we ordinarily consider the issue
waived.”).
11
Pl.’s Opening Br. 7 (emphases added). This language is a clear reference to the
repeated violations doctrine.
Although Plaintiff abandons the continuing violation doctrine on appeal, the
City continues to view the case in that context. In the City’s view, the Supreme
Court’s analysis of the continuing violation doctrine in National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002), is controlling. In Morgan, the Supreme Court
considered how statutes of limitations apply to various claims under Title VII of the
Civil Rights Act of 1964. For hostile work environment claims, the Supreme Court
held that “consideration of the entire scope of [the] claim, including behavior alleged
outside the statutory time period, is permissible for the purposes of assessing
liability, so long as an act contributing to that hostile environment takes place within
the statutory time period.” Id. at 105. The Supreme Court reasoned that hostile work
environment claims “cannot be said to occur on any particular day” and instead
“occur[] over a series of days or perhaps years.” Id. at 115. Because “[s]uch claims
are based on the cumulative effect of individual acts,” “[i]t does not matter . . . that
some of the component acts of the hostile work environment fall outside the statutory
time period.” Id. at 115, 117.
The City argues that Morgan precludes us from applying the continuing
violation doctrine to Plaintiff’s Title II and section 504 claims because the City
subjected him to only “discrete acts of discrimination” that “did not require proof” of
the cumulative effect of individual acts. Def.’s Resp. Br. 11. Although that
argument is correct, it misses the mark insofar as it assails an argument Plaintiff does
12
not make on appeal. Contrary to the way the City frames the issue, Plaintiff does not
contend that he should be able to aggregate separate acts into one single,
comprehensive violation. Instead, he argues that he may recover for injuries he
suffered inside of the limitations period but not for injuries he suffered outside of the
limitations period—that is, he is arguing for application of the repeated violations
doctrine. Morgan, therefore, is inapposite to this appeal because it did not involve
the repeated violations doctrine. Indeed, the language of that case—e.g., that hostile
work environments are made up of “component acts” and “are based on the
cumulative effect of individual acts”—makes it clear it was immediately concerned
with interpreting and applying the continuing violation doctrine.
The City further relies on our unpublished decision in Rhodes v. Langston
University, 462 F. App’x 773 (10th Cir. 2011). In Rhodes, the plaintiff argued that
the alleged Title II and section 504 violations at issue could not “be tied to specific
dates as all were on-going events.” Id. at 780. He thus argued that the district court
erred in concluding that the applicable two-year statute of limitations barred any of
his claims—including those based on acts that occurred outside of the limitations
period—because they amounted to “a continuation . . . of related and repetitive
unlawful acts or practices” that only concluded within that two-year period. Id.
Although we ultimately determined that the plaintiff’s argument had no merit, that
determination does not bear upon the outcome of Plaintiff’s current appeal before us
today. Like the Supreme Court’s language in Morgan, our language in Rhodes shows
that we were concerned in that case with whether the continuing violation doctrine,
13
not the repeated violations doctrine, applied to Title II and section 504 claims. Thus,
the City’s attempt to analogize Plaintiff’s arguments to Rhodes is equally
unconvincing.
Finally, the City directs us to Foster v. Morris, 208 F. App’x 174 (3d Cir.
2006) (unpublished). In that case, the Third Circuit concluded that the continuing
violation doctrine, not the repeated violations doctrine, does not apply to Title II
claims. See, e.g., id. at 177 (“The continuing violations doctrine is an equitable
exception to a strict application of a statute of limitations where the conduct
complained of consists of a pattern that has only become cognizable as illegal over
time.”); id. at 177–78 (“When a defendant’s conduct is part of a continuing practice,
an action is timely so long as the last act evidencing the continuing practice falls
within the limitations period; in such an instance, the court will grant relief for the
earlier related acts that would otherwise be time barred.” (internal quotation marks
and alterations omitted)). And interestingly enough, although Foster did not address
the repeated violations doctrine outright, Foster’s underlying reasoning actually
supports—or, at the very least, leaves room open for—that doctrine in the Title II and
Section 504 context. Indeed, the Third Circuit concluded that the plaintiff in that
case was “still entitled to recover for any violations that occurred during” the
limitations period even though he could not recover for any violations that occurred
14
outside that period. Id. at 178. That logic is perfectly consistent with the repeated
violations doctrine. So no matter how we slice it, Foster cannot help the City.6
Because none of the cases the City cites resolve whether the repeated
violations doctrine applies to Plaintiff’s claims under Title II and section 504, we
turn to the statutory text to decide this matter of first impression in our circuit.
III.
We hold that the repeated violations doctrine applies to claims under Title II of
the Americans with Disabilities Act and section 504 of the Rehabilitation Act of
1973. As we explain below, a public entity repeatedly violates those two statutes
each day that it fails to remedy a non-compliant service, program, or activity.
Accordingly, a qualified individual with a disability is excluded from the
participation in, denied the benefits of, and subjected to discrimination under the
service, program, or activity each day that she is deterred from utilizing it due to its
non-compliance. She stops suffering a daily injury only when the public entity
6
Although neither party cites it, we also note that the Fifth Circuit’s decision
in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc), does not bear
on Plaintiff’s present appeal. The Frame court held that a single cause of action
accrues under Title II and section 504 when the plaintiff “has sufficient information
to know that he has been denied the benefits of a service, program, or activity of a
public entity.” Id. at 238. One may think that holding amounts to a rejection of the
repeated violations doctrine. But the question whether the repeated violations
doctrine applies to Title II claims was not before the court in Frame. Indeed, Frame
only considered whether a Title II cause of action accrues when the plaintiff
discovers he has been injured or when the public entity engaged in the wrongful act
that caused the injury. Id. at 238–40. Nothing in its holding rejects or is inconsistent
with the repeated violations doctrine. Thus, for our purposes today, Frame is of
limited value.
15
remedies the non-compliant service, program, or activity or when she no longer
evinces an intent to utilize it. The practical effect is that, once the individual sues
under Title II or section 504, the statute of limitations bars recovery only for those
injuries she incurred outside of the limitations period immediately preceding the day
of suit; it does not, however, bar recovery for injuries she incurred within that
limitations period or after she files suit.
A.
Our starting point is the plain language of Title II and section 504. See
Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1231 (10th Cir. 2016). If that
language is “clear and unambiguous,” then “our duty is simply to enforce the statute
that Congress has drafted.” United States v. Brown, 529 F.3d 1260, 1264 (10th Cir.
2008) (quoting United States v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005)).
Significantly, though, “the meaning of statutory language, plain or not, depends on
context.” First Nat’l Bank of Durango v. Woods (In re Woods), 743 F.3d 689, 694
(10th Cir. 2014) (quoting United States v. Villa, 589 F.3d 1334, 1343 (10th Cir.
2009)). We thus need not constrain ourselves to the “language itself” in determining
whether Title II and section 504 clearly and unambiguously convey when and how
often a public entity violates these two statutes. Salazar v. Butterball, LLC, 644 F.3d
1130, 1137 (10th Cir. 2011) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)). Rather, we may also look to “the specific context in which that language is
used” and “the broader context of the statute as a whole.” Id. (quoting Robinson, 519
U.S. at 340). Both the text and structure of the statutes guide our decision today.
16
Consider first the specific language. Title II mandates that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Likewise, section 504 mandates in part that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a).
Obviously, neither of these statutes state outright when or how often a public
entity violates them. They simply command that no qualified individual may “be
excluded” from, “be denied” the benefits of, or “be subjected” to discrimination
under a service, program, or activity. With that said, that language is phrased in the
present tense (albeit in the passive voice), which suggests that a qualified individual
who currently experiences discrimination under Title II or section 504 suffers an
injury. And so the same language also suggests that a qualified individual suffers
new discrimination and a new injury each day that she cannot utilize a non-compliant
service, program, or activity—even if the barriers giving rise to her claim were ones
she encountered before. After all, if sidewalks and curb cuts actually do constitute a
service, program, or activity of a public entity—a question that we express no
opinion on today—a qualified individual with a disability would still “be excluded”
from utilizing any given sidewalk or curb cut each day that it remained non-
17
compliant.7 Likewise, that same individual would still “be denied” the benefits of
that sidewalk or curb cut when she encountered it a day ago just as much as when she
first encountered it a year ago. Cf. Pickern v. Holiday Quality Foods Inc., 293 F.3d
1133, 1136 (9th Cir. 2002) (interpreting the phrases “is being subjected to” and “is
about to be subjected to” in the enforcement provision of Title III of the ADA and
concluding that they “make[] clear that either a continuing or a threatened violation
of the ADA is an injury within the meaning of the Act”); Scherr v. Marriott Int’l,
Inc., 703 F.3d 1069, 1075–76 (7th Cir. 2013) (relying on Pickern and concluding the
same).
To the extent any real or perceived gaps remain in the statutory text, the
Supreme Court’s Title II jurisprudence fills them. In Tennessee v. Lane, 541 U.S.
509 (2004), the Supreme Court recognized “that failure to accommodate persons with
disabilities will often have the same practical effect as outright exclusion.” Id. at 531
(citing 42 U.S.C. § 12131(2)). Title II therefore imposes “an affirmative obligation
to accommodate persons with disabilities.” Id. at 533.8
7
We assume only for the purposes of this appeal that sidewalks and curb cuts
constitute a service, program, or activity.
8
As Plaintiff points out, numerous regulations implementing the ADA reflect
this principle. See, e.g., 28 C.F.R. § 35.133(a) (“A public entity shall maintain in
operable working condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons with disabilities . . . .”
(emphasis added)); id. § 35.150(a) (“A public entity shall operate each service,
program, or activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with disabilities.”
(emphasis added)); id. § 35.150(d) (allowing public entities to create a multi-year
plan to remove existing barriers); id. § 35.151(b)(1) (“Each facility or part of a
18
This “duty to accommodate,” id. at 532, solidifies that Title II (and, by
extension, section 504) clearly and unambiguously conveys that a non-compliant
service, program, or activity gives rise to repeated violations.9 Failing to act in the
face of an affirmative duty to do so axiomatically gives rise to liability. Cf., e.g.,
Restatement (First) of Torts § 284 (1934) (“Negligent conduct may be . . . a failure to
do an act which is necessary for the . . . assistance of another and which the actor is
under a duty to do.”); Restatement (Second) of Torts § 824 (1979) (“The conduct
necessary to make the actor liable for . . . nuisance may consist of . . . a failure to act
under circumstances in which the actor is under a duty to take positive action . . . .”).
Further, if the actor under the affirmative duty keeps failing to act while the
underlying problem remains unremedied, then every day’s inaction amounts to a new
violation. Cf., e.g., Grant, 505 F.3d at 1028 (observing that continuing temporary
nuisances “give[] rise over and over to new causes of action” until they are abated
(internal quotation marks and alteration omitted)). Thus, even though “adverse
effects resulting from” a single, original violation do not trigger the repeated
facility . . . shall . . . be altered in such manner that the altered portion of the facility
is readily accessible to and usable by individuals with disabilities.” (emphases
added)).
9
In addition to the fact that we analyze Title II and section 504 claims
together, Miller ex rel. S.M., 565 F.3d at 1245, the language of the RA itself also
suggests an affirmative duty to accommodate. See, e.g., 29 U.S.C. § 701(c)(2)
(requiring “the use of accessible formats” for qualified individuals with disabilities);
see also Alexander v. Choate, 469 U.S. 287, 301 (1985) (observing that qualified
individuals with disabilities under the RA are entitled to “meaningful access” and
“reasonable accommodations”).
19
violations doctrine when they do not constitute violations in their own right,
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628 (2007), overturned on
other grounds by The Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2, 123
Stat. 5 (2009), claims under Title II (and section 504 by extension) do not fit that
rubric. Rather, a public entity does commit a “new violation” each day that it fails to
remedy a non-compliant service, program, or activity. The affirmative, ongoing duty
that Title II and section 504 place upon it mandates as much. Id. 10,11
10
The City notes and relies on the Fourth Circuit’s opinion in A Society
Without A Name v. Virginia, 655 F.3d 342 (4th Cir. 2011), which concluded that a
claim under Title II did not trigger the principles of the repeated violations doctrine
because that claim only gave rise to “the continuing ill effects of [one] original
violation.” Id. at 348–49. We do not find that case persuasive, however, because it
never factored in the mandate that Title II imposes an affirmative duty to
accommodate. See id.
11
At this point, we believe that an analogy to temporary nuisance claims—one
of the “touchstone” instances of the repeated violations doctrine at work, Graham,
supra, at 308—can further illustrate our rationale. A temporary nuisance exists
“[w]here the injury from the alleged nuisance . . . is of a continuing or recurring
character.” 58 Am. Jur. 2d Nuisances § 221 (2018). “In such a case, every day’s
continuance is a new nuisance,” id., that “gives rise over and over to new causes of
action,” Grant, 505 F.3d at 1028 (internal quotation marks and alteration omitted).
The practical effect is that “a new statute of limitations begins to run . . . after each
new injury,” 58 Am. Jur. 2d Nuisances § 253 (2018) (emphasis added), and the final
statute of limitations accrues only when the temporary nuisance is remedied once and
for all. See Grant, 505 F.3d at 1028. Thus, so long as the temporary nuisance
continues unabated, a plaintiff bringing suit is effectively doing so on “day one” of a
new limitations period, which enables her to seek damages for past injuries sustained
“within the limitations period immediately prior to suit.” Id. (internal quotation
marks omitted).
So too here. Each time a qualified individual with a disability is excluded
from, denied the benefits of, or subjected to discrimination under a service, program,
or activity, he suffers an injury under Title II and section 504. For the reasons we
explained above, this injury is not a one-time event; rather, it repeatedly occurs so
long as the service, program, or activity remains non-compliant and the qualified
20
The broader statutory context of the ADA and RA bolsters this conclusion.
Consider, for example, 42 U.S.C. § 12101, which outlines Congress’s express
statutory purposes for enacting the ADA. There, Congress noted that “the Nation’s
proper goals regarding individuals with disabilities are to assure . . . full
participation . . . for such individuals.” 42 U.S.C. § 12101(a)(7). Congress made a
similar conclusion earlier when it enacted 29 U.S.C. § 701, which lists the purposes
of the RA. In that statute, Congress noted that it hoped to achieve “full inclusion and
integration in society” for individuals with disabilities and that an entity charged with
carrying out the RA should always consider “the principle[] of . . . full participation
of the individuals.” 29 U.S.C. § 701(a)(6)(B), (c)(3).
Congress’s goals of full participation, inclusion, and integration for qualified
individuals with disabilities are consistent with and suggestive of the repeated
violations doctrine. A qualified individual is not a full participant or fully included
in a service, program, or activity if she cannot utilize it in a similar way as persons
without disabilities, and that does not change simply because she was deterred from
utilizing the service, program, or activity many times before. What matters is
whether the individual can fully participate now in the service, program, or activity.
The repeated violations doctrine, in turn, accounts for that reality—and, for that
matter, encourages public entities to comply with their affirmative and ongoing
individual is aware of that and deterred from utilizing it. So when a Title II or
section 504 plaintiff brings suit, he is essentially doing so on the first day of a new
limitations period.
21
obligations to accommodate—by giving a qualified individual an avenue for relief
any moment that he or she cannot fully participate or is not fully included in a
service, program, or activity.
Congress further observed in enacting the ADA that “the continuing existence
of unfair and unnecessary discrimination and prejudice denies people with disabilities
the opportunity to compete on an equal basis and to pursue those opportunities for
which our free society is justifiably famous . . . .” 42 U.S.C. § 12101(a)(8) (emphasis
added). It also noted that it hoped “to address the major areas of discrimination faced
day-to-day by people with disabilities.” Id. § 12101(b)(4) (emphasis added).
Similarly, when it previously enacted the RA, Congress had discerned that
“individuals with disabilities continually encounter various forms of discrimination.”
29 U.S.C. § 701(a)(5) (emphasis added). This language demonstrates that Congress
understood that a public entity could repeatedly cause a qualified individual with a
disability to suffer an injury from the same service, program, or activity. Certainly,
nothing in the text of Title II or section 504 suggests otherwise.
The statutory text and the Supreme Court’s pronouncements make one thing
clear: Congress did not design the ADA or the RA so that a public entity could
forever prevent a qualified individual with a disability from utilizing a service,
program, or activity. Yet the City argues for that exact result. The City contends
that because Plaintiff filed suit more than two years after he first encountered the
allegedly non-compliant sidewalks and curb cuts, the statute of limitations forever
bars him from forcing the City to live up to its affirmative duty and correct those
22
barriers. That proposition simply cannot fit within the language, structure, and
purpose of the ADA or the RA.
In conclusion, based on the plain language of Title II of the ADA and section
504 of the RA, Supreme Court jurisprudence interpreting Title II, and Congress’s
express statutory purposes in enacting the ADA and RA, we hold that Title II and
section 504 clearly and unambiguously require us to acknowledge they are subject to
the repeated violations doctrine.12 Accordingly, each time a qualified individual with
a disability encounters or “actually become[s] aware of” a non-compliant service,
program, or activity “and is thereby deterred” from utilizing that service, program, or
activity, he or she suffers discrimination and a cognizable injury. Pickern, 293 F.3d
12
Because Title II and section 504 are unambiguous in this regard, we have no
reason to consider “the underlying public policy” of either statute. United States v.
Manning, 526 F.3d 611, 614 (10th Cir. 2008) (quoting United States v. LaHue, 170
F.3d 1026, 1028 (10th Cir. 1999)); see also id. (“If the statutory language is clear, our
analysis ordinarily ends.”). Even so, we observe as a side note that applying the
repeated violations doctrine to claims under Title II and section 504 serves the
interests of efficiency. In Title II and section 504 cases, “more than just the rights of
the plaintiff before the court are at stake.” Graham, supra, at 321. Indeed, many
other qualified individuals with disabilities also benefit from a ruling favorable to the
plaintiff. To use this case as an example, if Plaintiff were to succeed in requiring the
City of Trinidad to further remedy its sidewalks and curb cuts, other individuals who
use wheelchairs would likewise reap the rewards. So if we were not to apply the
repeated violations doctrine to Plaintiff’s claims and therefore forever bar those
claims on statute of limitations grounds, “a substantively similar but timely suit
brought by a different plaintiff”—namely, another qualified individual unable to
utilize the City’s sidewalks and curb cuts—“could land in [this Court’s] lap soon
thereafter.” Id. Thus, although the clear and unambiguous language of these two
statutes carries the day, we note the inherent good sense in “entertaining the claim[s]
at hand” but limiting Title II and section 504 plaintiffs “to only those damages
suffered within the limitations period and, perhaps more important, to injunctive
relief.” Id.
23
at 1136–37. So long as the service, program, or activity remains non-compliant, “and
so long as a plaintiff is aware of [that] and remains deterred,” the qualified
individual’s injury repeats. Id. at 1137. A defendant, therefore, cannot brandish the
statute of limitations in its usual manner as a shield that fully protects he, she, or it
from suit. But the defendant can wield the statute of limitations as a sword that
chops off damages arising before the limitations period comes into play.
B.
The City of Trinidad and the Colorado Municipal League (“the League”) as
amicus curiae both claim that our ruling today will effectively “nullify the statute of
limitations.” Def.’s Resp. Br. 24.
Not so for several reasons. For starters, both the City and the League conflate
the repeated violations doctrine and continuing violation doctrine—or at least
conflate which of the two Plaintiff is arguing for on appeal—which likely has
contributed to that belief. See supra. But setting that point aside, we “will look
beyond the plain language of a statute only if the result is an absurd application of the
law.” Brown, 529 F.3d at 1265 (emphasis in original). Observing that the repeated
violations doctrine applies to Title II and section 504 claims, however, does not result
in any absurd statute-of-limitations outcomes. Indeed, the statute of limitations still
has an important role to play even when the repeated violations doctrine applies to a
claim. Namely, although the statute of limitations does not bar an untimely lawsuit
in its entirety in such an instance, it nonetheless limits the plaintiff’s ability to
recover damages to only those injuries incurred during the limitations period
24
immediately preceding suit (the plaintiff, of course, can also recover damages for any
injuries incurred after filing suit).13 White, 129 F.3d at 1430. By contrast, the
repeated violations doctrine prevents a plaintiff from recovering damages for every
injury she suffered throughout history that relates to the non-compliant service,
program, or activity.14 Cf., e.g., Foster, 208 F. App’x at 178. If Plaintiff, for
example, had first discovered the City’s non-compliant sidewalks and curb cuts in
1996 but still brought suit in 2016, he would not be able to recover damages for
every injury he sustained throughout those twenty years; he would be restricted to
those injuries he suffered after October 12, 2014. This in itself substantially limits a
public entity’s liability under Title II and section 504.
13
Theoretically, the statute of limitations could still function as a complete bar
to an untimely lawsuit even when the repeated violations doctrine applies. Suppose,
for instance, a plaintiff was first deterred from utilizing a service, program, or
activity in 2009 and tries to bring a lawsuit in 2019 for violations of Title II and
section 504 against the public entity responsible. But also suppose the plaintiff
concedes that in 2016 the public entity completely and entirely remedied the non-
compliant service, program, or activity. Assuming a two-year statute of limitations
applies, it would entirely bar the plaintiff’s claims even though the repeated
violations doctrine also applies to his claims. Indeed, the public entity’s last possible
repeated violation (and the plaintiff’s last possible injury) would have occurred in
2016 before the remedy went into place, which means that the statute of limitations
would have run at some point in 2018. Accordingly, the 2019 lawsuit would be
untimely because the plaintiff could not point to a violation or injury that occurred in
the two years prior to the day he files suit.
We mention this scenario only to illustrate that it is possible. Our immediate
concern, however, is with cases where the public entity has not remedied the non-
compliant service, program, or activity. In such instances, the public entity is still
committing violations, and the qualified individual with a disability is still suffering
injuries.
14
The continuing violation doctrine would allow for such a recovery. See
Morgan, 536 U.S. at 105.
25
What’s more, Title II and section 504 plaintiffs are able to recover damages
only in the unusual case. Our circuit requires proof of intentional discrimination
before a plaintiff can recover compensatory damages under section 504, Havens v.
Colo. Dep’t of Corr., 897 F.3d 1250, 1263 (10th Cir. 2018), and we have suggested
that as much is required under Title II, Moseley v. Bd. of Educ. of Albuquerque Pub.
Sch., 483 F.3d 689, 693 (10th Cir. 2007) (noting that Tenth Circuit precedent
suggests, but does not explicitly hold, “that proof of intentional discrimination is
required for compensatory damages under Title II”); see also Miraglia v. Bd. of
Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir. 2018) (“To recover
compensatory damages for disability discrimination under Title II of the ADA, a
plaintiff must also show that the discrimination was intentional.” (emphasis added)
(internal quotation marks omitted)). And punitive damages are categorically
unavailable for suits under Title II and section 504. Barnes v. Gorman, 536 U.S. 181,
189 (2002). So Title II and section 504 plaintiffs are hard-pressed to receive any
monetary damages unless they can prove that a service, program, or activity is
intentionally discriminatory toward individuals with disabilities, which is surely the
exception rather than the rule. This stands as an additional limitation of a public
entity’s liability under Title II and section 504.
We agree with the City and the League, though, that the repeated violations
doctrine will manifest itself by keeping public entities on the hook for injunctive
relief as the years go by. After all, if a court grants an injunction requiring a public
entity to remedy a program, service, or activity, we have a difficult time seeing just
26
how the court or public entity could divvy that injunction up in a way that limits it to
injuries the plaintiff incurred within the limitations period. See Holmberg v.
Ambrecht, 327 U.S. 392, 396 (1946) (observing that equitable relief “eschews
mechanical rules”).
But the availability of injunctive relief itself does not raise any red flags. As
we described above, when Congress outlined its purposes and goals in enacting the
ADA and RA, it expressly noted that it sought full participation, inclusion, and
integration in society for individuals with disabilities. By remaining on the hook for
injunctive relief—as its affirmative obligation to accommodate requires—a public
entity is incentivized to remedy non-compliant services, programs, or activities in a
reasonable yet efficient manner to ensure that full participation. And along those
same lines, Plaintiff makes an excellent point: “public entities . . . have the ultimate
option to avoid liability” by “simply mak[ing] their programs, services, and activities
accessible for persons with disabilities.” Pl.’s Opening Br. 30; see also Frame v. City
of Arlington, 657 F.3d 215, 239 (5th Cir. 2011) (en banc) (“The City may avoid
liability whenever it chooses simply by building sidewalks right the first time, or by
fixing its original unlawful construction. In other words, the City is not liable
forever; it is responsible only for correcting its own mistakes.”).
Further, as far as injunctive relief is concerned, we note that a qualified
individual with a disability no longer suffers an injury once he stops “assert[ing] an
intent to return to the particular place (or places) where the violations are alleged to
be occurring.” Scherr, 703 F.3d at 1074, 1076; see also Frame, 657 F.3d at 238 (“[A]
27
disabled individual has no standing to challenge an inaccessible sidewalk until he can
show actual, concrete plans to use that sidewalk.” (internal quotation marks
omitted)); Barney v. Pulsipher, 143 F.3d 1299, 1306 n.3 (10th Cir. 1998) (“A
‘plaintiff cannot maintain a declaratory or injunctive action unless he or she can
demonstrate a good chance of being likewise injured in the future.’” (quoting Facio
v. Jones, 929 F.2d 541, 544 (10th Cir. 1991))). Although this implicates Article III
standing, Scherr, 703 F.3d at 1073–76, the practical effect of that lack of intent
would insulate a public entity from a Title II or section 504 lawsuit seeking
prospective injunctive relief. To use an extreme example, if Plaintiff were to move
away from the City of Trinidad and had no intent to return, he would no longer be
suffering any injury—and, consequently, would lack standing to bring a suit for
prospective injunctive relief—regardless of whether the City remedied the sidewalks
and curb cuts that allegedly injured him in the past. And even if a qualified
individual still suffers an injury after many years, we note that at some point the
doctrine of laches may come into play. See SCA Hygiene Prods. Aktiebolag v. First
Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (“Laches is ‘a defense
developed by courts of equity’ to protect defendants against ‘unreasonable,
prejudicial delay in commencing suit.’” (quoting Petrella v. Metro-Goldwyn-Mayer,
Inc., 572 U.S. 663, 667, 678 (2014)). This further cuts against the City’s and the
League’s arguments that public entities will be exposed to unlimited liability.
As a final note, we are not unsympathetic to the City’s and the League’s
arguments that public entities are constrained by limited budgets that do not easily
28
lend themselves to the constant ability to remedy ADA and RA issues.15 But again,
liability for monetary damages is infrequent, which significantly softens the impact
of our ruling today. See supra. And if a public entity truly is not liable, or if that
entity has already taken significant steps to remedy or can establish that it has multi-
year plans in place to remedy a non-compliant service, program, or activity—as the
City has apparently done in this case—a factfinder will be able to ferret that out when
deciding the merits of any given case. See, e.g., Rife v. Okla. Dep’t of Pub. Safety,
854 F.3d 637, 643 (10th Cir. 2017) (observing that factfinders find facts weighing on
liability). Indeed, at least two other circuits have endorsed either the repeated
violations doctrine or continuing violation doctrine in the context of ADA Title III
claims, but neither the City nor the League have directed us to any evidence
suggesting that places of public accommodation located in those circuits have faced
significant hardship by the courts’ respective applications of the doctrines. See
Pickern, 293 F.3d at 1136–37; Scherr, 703 F.3d at 1075–76.
Thus, the City’s and the League’s concerns are unsubstantiated.
IV.
The district court did not recognize the impact of the repeated violations
doctrine on Plaintiff’s claims under Title II of the ADA and section 504 of the RA.
15
The City contends that adopting the repeated violations doctrine will cause
this inability to remedy ADA and RA issues, but it is mistaken. Even without the
repeated violations doctrine, qualified individuals with disabilities who have
encountered the City’s non-compliant services, programs, or activities within the past
two years could just as easily bring lawsuits against the City. So the danger about
which the City complains exists even under their own interpretation of the law.
29
Instead, it concluded that Plaintiff could not “rely solely on the continued
inaccessibility of the City’s sidewalks and curb cuts” to survive dismissal under
Colorado’s two-year statute of limitations.
This was error. Because the district court applied an incorrect standard, it
could not determine under the proper framework how the two-year statute of
limitations affected Plaintiff’s claims. As a court of review, we will not decide that
inquiry for the first time on appeal. Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d
1213, 1218 (10th Cir. 2008). We thus remand the case to the district court to decide
in the first instance under the framework set forth in this opinion which of Plaintiff’s
injuries he may seek relief for and which of those he may not. In so doing, the
district court will necessarily need to determine which of the City’s sidewalks and
curb cuts Plaintiff has actually been deterred from utilizing.16
For the reasons set forth above, we REVERSE and REMAND for further
proceedings consistent with this opinion.
16
In issuing these instructions on remand, we emphasize once again that we
take no stance on the question whether sidewalks and curb cuts qualify as a service,
program, or activity of a public entity. We also issue these instructions cognizant of
the fact that the district court assumed—much like we did—that sidewalks and curb
cuts qualify as a service, program, or activity of a public entity so that it could reach
the “narrower” and “dispositive” statute of limitations question. For those reasons,
the district court may now find it necessary to definitively decide on remand whether
sidewalks and curb cuts qualify as a service, program, or activity of a public entity,
and it should not read anything in this opinion as preventing it from doing so.
30